Sjr v. Fmr

933 So. 2d 352, 2004 Ala. Civ. App. LEXIS 356, 2004 WL 1012892
Procedural entryThis page is a short order in Sjr v. Fmr. Read the opinion of the Court — 933 So. 2d 352
Court of Civil Appeals of Alabama·Decided May 7, 2004·No. 2011261·Published

Opinion

933 So.2d 352 (2004)

S.J.R.
v.
F.M.R.

2011261.

Court of Civil Appeals of Alabama.

May 7, 2004.
Rehearing Denied February 25, 2005.
Certiorari Denied January 13, 2006.

*353 Judy H. Barganier, Montgomery, for appellant.

Jacqueline E. Austin, Wetumpka, for appellee.

Alabama Supreme Court 1040819.

MURDOCK, Judge.

This is a child-custody-modification case. S.J.R., the mother, appeals from a judgment entered by the Elmore Circuit Court awarding custody of the parties' daughter to F.M.R., the father.

In July 1996, the Elmore Circuit Court entered a divorce judgment based on an agreement of the parties. The divorce judgment awarded the parties joint legal custody of their daughter, who was born in May 1994. The divorce judgment awarded the mother primary physical custody of the child; it awarded the father visitation with the child every weekend.

In September 1999, the mother filed an "Emergency Motion for Ex Parte Relief" in the Elmore Circuit Court, seeking to suspend the father's visitation with the child. The mother's emergency motion was based upon allegations by the child that the paternal grandfather had sexually abused the child during the father's visitation.[1]*354 The trial court entered an ex parte order suspending the father's visitation, as requested by the mother, and setting the case for a hearing to be held on September 23, 1999. Thereafter, the father filed a written response to the mother's emergency motion.

A few days after the mother filed her emergency motion, she filed a petition to modify the father's visitation rights; in that petition she requested that the trial court enter an order terminating the father's visitation or requiring that his visitation be supervised. The father filed a motion requesting that the trial court appoint a guardian ad litem to represent the child's interests; that motion was granted. The father also filed a motion requesting that the trial court enter an order "removing" Sharon Bell, a counselor who had been retained by the mother to evaluate the child, as the child's counselor. The father alleged that Bell had not cooperated with his discovery efforts, that Bell appeared to be biased, and that Bell had ignored allegations of sexual abuse that the child had made against the mother's fiancé.[2] The father requested that the trial court designate another counselor to examine the child.

In October 1999, after holding a hearing, the trial court entered a pendente lite order maintaining custody of the child in the mother and awarding the father weekend visitation with the child. The trial court ordered the father not to allow other family members around the child; the trial court also ordered the mother not to allow other males around the child unless the mother was also present.

In his answer to the mother's petition to modify his visitation rights, the father alleged that the Department of Human Resources ("DHR") had a pending investigation regarding the child's allegations that she had been sexually abused by the mother's fiancé, noted that he had not been accused of abusing the child, and requested that the trial court deny the mother's petition to modify his visitation rights. The father also filed a counterclaim, alleging that a material change in circumstances had occurred since the entry of the divorce judgment. He alleged that the mother had neglected the child, that the mother had hampered the child's natural development, and that the mother had failed to protect the child from the mother's fiancé. The father requested that the trial court enter an order awarding him physical custody of the child.

After the father filed his answer and counterclaim, the parties agreed that Bell would be removed as the child's counselor and that the child would be evaluated by Sandra Segall, a licensed professional counselor. On November 9, 1999, the trial court entered an order on the case action summary sheet that stated, in part, "Sandra Segall is appointed [licensed professional counselor] for this Court, and [she is] to make a report of her findings and recommendations to this Court only."[3]

*355 The trial court set the case for trial in April 2001. The trial court conducted a trial over a period of nine days during the months of April, June, July, and December 2001 and April 2002. In April 2001, approximately one week before the trial began, the mother deposed Segall regarding her numerous counseling sessions with the child since November 1999. After the deposition, the mother filed a motion requesting that the trial court "disqualify" Segall from serving as the "court-appointed expert" and that it appoint a new counselor to assess the child. The mother alleged, in part, that Segall had "no expertise. . . in the specific area of intrafamilial child sexual abuse and no expertise in the assessment of allegations pertaining to intrafamilial child sexual abuse." The trial court denied the mother's motion to disqualify Segall.

At the beginning of the trial proceedings in April 2001, the mother objected to Segall's being allowed to testify in the case because, the mother said, she was not qualified to testify as an expert. Counsel for the mother also stated:

"[MOTHER'S COUNSEL]: I'm extremely concerned about how we're going to proceed as far as the child's allegations. I mean, there's nothing in the rules in the law anywhere that say that we can end around the hearsay rule . . . unless the out of court statement is not offered for the truth of the matter.[[4]] Obviously, we will have testimony that involves what the child said. That's illegal. I need some guidance from the Court about how we're going to handle that. I will need to enter appropriate objections. We can't just all presume to come in here and offer what the child said if it's being offered for the truth of what she said. That's another reason that we vehemently object to the—to any report from Sandra Segall being admitted. . . . This is not a criminal proceeding. The child sex abuse victim protection act does not apply. The rule is that [the child] would have to testify. There is no way to say that we're just going to ignore that rule.
". . . .
"[MOTHER'S COUNSEL]: . . . I'm not trying to throw a monkey wrench in this. But what happened as far as Sandra Segall and all this information that is floating around out there, I cannot just say, okay, well, let's all just waive the hearsay rule and whatever the child has said to anybody just comes in. It can't happen that way. So I need to know how we're going to proceed on that issue.
". . . .
"COURT: Wait a minute. Is anybody calling the child?
"[MOTHER'S COUNSEL]: . . . [W]e don't want to put the child through this. But on the other hand, we can't just waive our rights as far as the hearsay rule and just throw it over to them. They've got the more critical petition to modify custody. So it is incumbent *356 upon them to figure a way to give the Court evidence to modify custody and all that [Ex parte] McLendon[, 455 So.2d 863 (Ala.1984),] requires. I'm not going to just say, fine, you know, we will just ignore hearsay and have at it."

Thereafter, the trial judge requested that the parties "figure it out," but he stated that he would "follow the law" and he advised the parties to "[u]se the rules to your best advantage."

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Sjr v. Fmr, 933 So. 2d 352, 2004 Ala. Civ. App. LEXIS 356, 2004 WL 1012892 (Ala. Ct. App. 2004).

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